Dismissal of Sex-Based Hostile Work Environment Claim Affirmed, Notwithstanding “Bitch”

In Braunstein v. Sahara Plaza, LLC, Fairmont Hotels & Resorts (Maryland) LLC, 2022 WL 17480962 (2d Cir. Dec. 7, 2022), the court, inter alia, affirmed the summary judgment dismissal of plaintiff’s sex-based hostile work environment claim.

From the decision:

To succeed on a hostile work environment claim under either Title VII or the NYSHRL, Braunstein must “proffer sufficient evidence to allow a trier of fact to find disparate treatment based on gender, resulting in a hostile working environment that was ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment ….’ ” Pucino, 618 F.3d at 117 & n.2 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). In assessing Braunstein’s hostile work environment claim, a trier of fact may only consider “abusive conduct proven to be ‘based on sex.’ ” Id. at 117 (quoting Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002)).

Here, Braunstein fails to adduce sufficient evidence of sex-based abusive conduct. To support her hostile work environment claim, Braunstein points to two sex-neutral incidents—verbal altercations with bartenders Edmund McSloy and Roberto Rosa. Though the incidents may have been upsetting, Braunstein offers no evidence that McSloy or Rosa engaged in additional sex-specific harassment or made derogatory comments from which a trier of fact could infer that the altercations were based on sex. See Howley v. Town of Stratford, 217 F.3d 141, 156 (2d Cir. 2000) (holding that a rational juror could find ostensibly sex-neutral harassment was in fact sex-based because of perpetrator’s previous sexually derogatory verbal abuse).

The remaining incidents—including one in which a supervisor called Braunstein “not ladylike” and the incident in which Mariano spelled out “b-i-t-c-h”—were not “sufficiently severe or pervasive so as to alter the conditions of [Braunstein’s] employment.” Raniola v. Bratton, 243 F.3d 610, 617 (2d Cir. 2001) (alteration omitted) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). Nor, for reasons explained above, were these comments indicative of gender-based discrimination.

The court earlier noted, in reference to plaintiff’s sex-based termination claim, that while use of that word “bitch” in many contexts reflects sex-based hostility, it “cannot say that use of the word ‘bitch’ always and in every context has that meaning or that its usage need not be viewed in context.”

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